Summary

Facts

The application arose in the context of Article 5(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. Article 5(1) provides a temporary copying exemption to copyright infringement, provided the relevant criteria are met. Article 5(1) was transposed into English law by section 28A of the Copyright, Designs and Patents Act 1988.

The applicants, the PRCA, were an association of public relations professionals who used the media monitoring service offered by the Meltwater group of companies (M), which made available to them, online, monitoring reports of press reports published on the internet. The NLA took the view that M and its customers were required to obtain authorisation from the copyright holders for, respectively, providing and receiving the media monitoring service.

M agreed to enter into a web database licence. The PRCA, however, maintained that the online receipt of monitoring reports by M’s customers did not require a license.

The High Court of Justice and the Court of Appeal of England & Wales held that the members of the PRCA were required to obtain a license or consent from the NLA in order to receive M’s service. The PRCA brought an appeal against that decision before the Supreme Court. Lord Sumption concluded that on-screen copies and cached copies satisfied the fourth and fifth conditions laid out in Article 5(1) of Directive 2001/29 but queried as to whether the caching of material for a period of time after a browsing session had terminated was temporary and transient or incidental to the act of browsing as required by Article 5(1). The case was consequently referred to the CJEU for a preliminary ruling.

Issue

Whether Article 5 of Directive 2001/29 had to be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfied the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, and, if so, whether those copies could be made without the authorisation of the copyright holders.

Held

Article 5 of Directive 2001/29 had to be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk made by an end-user in the course of browsing satisfied the conditions in Article 5(1), as well as the conditions laid down in Article 5(5) of that directive, and that they could therefore be made without the authorisation of the copyright holders.

Under Article 5(1) of Directive 2001/29, an act of reproduction is exempted from the reproduction right provided for in Article 2 of that directive on condition that:

(i) it is temporary;

(ii) it is transient or incidental;

(iii) it is an integral and essential part of a technological process;

(iv)its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and

(v) it has no independent economic significance.

In light of the Supreme Court’s findings on the fourth and fifth conditions, the reference related solely to whether the first three conditions were satisfied. The CJEU held that they were:

(i) The reproduction was temporary

It was apparent from the documents before the Court that on-screen copies were deleted when the internet user moved away from the website viewed. The cached copies were normally automatically replaced by other content after a certain time, which depended on the capacity of the cache and on the extent and frequency of internet usage by the internet user concerned.

(ii) The reproduction was transient or incidental

An act will be held to be transient if its duration is limited to what was necessary for that process to work properly. The on-screen copies were automatically deleted by the computer at the moment when the internet user moved away from the website and therefore, at the moment when he terminated the technological process used for viewing that site. It was irrelevant that the on-screen copy remained in existence for as long as the internet user kept his browser open and stayed on the website concerned because, during that period, the technological process used for viewing that site remained active. It was also irrelevant that the automatic deletion was triggered by the action of the internet user in terminating the technological process (i.e. navigating away from the website or closing the browser). Accordingly, it had to be held that the period during which the on-screen copies remained in existence was limited to what was necessary for the proper functioning of the technological process used for viewing the website concerned. Consequently, those copies had to be regarded as ‘transient’.

As for the cached copies, it was true that, unlike the on-screen copies, these were not deleted at the time when the internet user terminated the technological process used for viewing the website concerned. However, the technological process in question wholly determined the purpose for which those copies had been created and used. It was also apparent from the documents before the Court that internet users employing the technological process at issue in the main proceedings could not create the cached copies outside of that process. It followed that the cached copies neither existed independently of, nor had a purpose independent of, the technological process at issue and had to, for that reason, be regarded as incidental.

(iii) On-screen and cached-copies were an integral and essential part of the process

The two criteria required in Infopaq International, EU:C:2009:465 and Case C‑302/10 Infopaq International, EU:C:2012:16 were fulfilled.

First, the on-screen copies and the cached copies were created and deleted by the technological process used for viewing websites, with the result that they were made entirely in the context of that process (criterion 1).

Second, browsing on the internet could not function correctly and efficiently without the acts of reproduction concerned taking place (criterion 2). The internet would be unable to cope with current volumes of data transmitted online without the creation of cached copies.

Concerning on-screen copies, it was not disputed that, at present, the technology for the viewing of websites on computers required such copies to be made if it was to function correctly and efficiently.

The copies at issue, therefore, satisfied the three conditions set out in Article 5(1) of Directive 2001/29. However, in order for it to be possible to rely on the exception laid down in that provision, the copies also had to satisfy the conditions set out in Article 5(5) of Directive 2001/29, whereby a temporary act of reproduction is exempt from the reproduction rights only in (1) special cases which (2) do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the right holders.

These conditions were satisfied:

(1) Since the on-screen copies and the cached copies were created only for the purpose of viewing websites, they constituted, on that basis, a special case.

(2) Although the copies made it possible, in principle, for internet users to access works displayed on websites without the authorisation of the copyright holders, the copies did not unreasonably prejudice the legitimate interests of those rights holders. The works had been made available to internet users by the publishers the websites, those publishers being required under Article 3(1) of Directive 2001/29 to obtain authorisation from the copyright holders concerned, whose legitimate interests were thus properly safeguard.

(3) The viewing of websites by means of the technological process at issue represented a normal exploitation of the works which made it possible for internet users to avail themselves of the communication to the public made by the publisher of the website concerned. Given that the creation of the copies in question formed part of such viewing, it could not operate to the detriment of such an exploitation of the works.

Comment

This decision confirms, as many would expect, Lord Sumption’s view that browsing the internet without the copyright owner’s permission does not infringe copyright. The CJEU did not address whether the copying exemption under Article 5(1) applies where internet users download, print or store the material being browsed. The conditions that a reproduction be temporary and transient or incidental, however, suggest that it does not.

Much like the Supreme Court, the CJEU adopted a pragmatic analysis. It noted that although the conditions in Article 5(1) of Directive 2001/19 had to be interpreted strictly – see Case C‑5/08 Infopaq International, EU:C:2009:465 Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others, EU:C:2011:631– it was also apparent from that same case law that the exemption must allow and ensure the development and operation of new technologies and safeguard a fair balance between the rights and interests of right holders and of users of protected works who wished to avail themselves of those technologies.

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